Ofcom Broadcast and On Demand Bulletin

Transcription

1 Ofcom Broadcast and On Demand Bulletin Issue number January 207

2 9 January 207 Contents Introduction 3 Notice of Sanction Urs Nehrian Noor TV, 7 November 205, 2:00 5 Broadcast Standards cases In Breach Tell Me Another Talking Pictures TV, 24 August 206, 9:00 7 Trigger Happy TV London Live, 3 September 206, 06:00 to 08:00 2 Kajal Lyca Dil Se 035, 28 July 206, 9:00 5 Father Spitzer s Universe EWTN, August 206, 06:00 At Home with Jim and Joy EWTN, August 206, 9:00 EWTN Bookmark EWTN, August 206, 22:30 7 Tables of cases Investigations Not in Breach 23 Complaints assessed, not investigated 24 Complaints outside of remit 33 Investigations List 35 2

3 9 January 207 Introduction Under the Communications Act 2003 ( the Act ), Ofcom has a duty to set for broadcast content as appear to it best calculated to secure the objectives. Ofcom also has a duty to secure that every provider of a notifiable On Demand Programme Services ( ODPS ) complies with certain requirements as set out in the Act 2. Ofcom must include these in a code, codes or rules. These are listed below. The Broadcast and On Demand Bulletin reports on the outcome of investigations into alleged breaches of those Ofcom codes and rules below, as well as licence conditions with which broadcasters regulated by Ofcom are required to comply. We also report on the outcome of ODPS sanctions referrals made by the ASA on the basis of their rules and guidance for advertising content on ODPS. These Codes, rules and guidance documents include: a) Ofcom s Broadcasting Code ( the Code ) for content broadcast on television and radio services. b) the Code on the Scheduling of Television Advertising ( COSTA ) which contains rules on how much advertising and teleshopping may be scheduled in television programmes, how many breaks are allowed and when they may be taken. c) certain sections of the BCAP Code: the UK Code of Broadcast Advertising, which relate to those areas of the BCAP Code for which Ofcom retains regulatory responsibility for on television and radio services. These include: the prohibition on political advertising; sponsorship and product placement on television (see Rules 9.3, 9.6 and 9.7 of the Code) and all commercial communications in radio programming (see Rules 0.6 to 0.8 of the Code); participation TV advertising. This includes long-form advertising predicated on premium rate telephone services most notably chat (including adult chat), psychic readings and dedicated quiz TV (Call TV quiz services). Ofcom is also responsible for regulating gambling, dating and message board material where these are broadcast as advertising 3. d) other licence conditions which broadcasters must comply with, such as requirements to pay fees and submit information which enables Ofcom to carry out its statutory duties. Further information can be found on Ofcom s website for television and radio licences. e) Ofcom s Statutory Rules and Non-Binding Guidance for Providers of On- Demand Programme Services for editorial content on ODPS. Ofcom considers sanctions in relation to advertising content on ODPS on referral by the Advertising Standards Authority ( ASA ), the co-regulator of ODPS for advertising or may do so as a concurrent regulator. Other codes and requirements may also apply to broadcasters, depending on their circumstances. These include the Code on Television Access Services (which sets out how much subtitling, signing and audio description relevant licensees must The relevant legislation is set out in detail in Annex of the Code. 2 The relevant legislation can be found at Part 4A of the Act. 3 BCAP and ASA continue to regulate conventional teleshopping content and spot advertising for these types of services where it is permitted. Ofcom remains responsible for statutory sanctions in all advertising cases. 3

4 9 January 207 provide), the Code on Electronic Programme Guides, the Code on Listed Events, and the Cross Promotion Code. It is Ofcom s policy to describe fully the content in television, radio and on demand content. Some of the language and descriptions used in Ofcom s Broadcast and On Demand Bulletin may therefore cause offence. 4

5 9 January 207 Notice of Sanction Urs Nehrian Noor TV, 7 November 205, 2:00 Introduction Noor TV is a digital satellite television channel broadcasting religious and other programming in Urdu from an Islamic perspective to audiences in the UK and internationally. The licence for Noor TV is held by Mohiuddin Digital Television Limited ( MDT or the Licensee ). This sanction relates to the second instalment of a series of four programmes which had been recorded at the Urs Nehrian festival in Pakistan in June 205. Summary of Decision In its decision published on 9 May 206 in issue 304 of the Broadcast and On Demand Bulletin, Ofcom found for the reasons summarised below that the programme contained potentially harmful and/or offensive material, and that the offensive material was not justified by the context. The programme featured a number of religious scholars and preachers addressing an assembled congregation with short sermons, homilies and poetic verses. One of the speakers made a number of remarks about Jewish people. The speaker recounted a parable that lauded the killing of a Jewish trader as an example of the devotion and obedience of a disciple to the Prophet Muhammad. The speaker on several occasions appeared to condone the killing of the Jewish trader. In Ofcom s view, the speaker s clear statements that religious obedience within the Islamic faith could be demonstrated through murder of a Jewish person had the potential to be interpreted as anti-semitism, and a form of hate speech. Ofcom considered that condoning the murder of Jewish people created a serious risk of harm to viewers, would have exceeded viewers expectations and was clearly capable of causing offence. Ofcom found that the two programmes breached Rules 2. and 2.3 of the Code: Rule 2.: Rule 2.3: Generally accepted must be applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive material. In applying generally accepted broadcasters must ensure that material which may cause offence is justified by the context. In accordance with Ofcom s penalty guidelines, Ofcom decided that it was appropriate and proportionate in the circumstances to impose a financial penalty of 75,000 on the Licensee in respect of these serious Code breaches (payable to HM data/assets/pdf_file/0035/49796/issue_304.pdf 5

6 9 January 207 Paymaster General). In addition, MDT should broadcast a statement of Ofcom s findings in this case, on a date and time to be determined by Ofcom. The full decision is available at: data/assets/pdf_file/0022/9624/noor-tv.pdf 6

7 9 January 207 Broadcast Standards cases In Breach Tell Me Another Talking Pictures TV, 24 August 206, 9:00 Introduction Talking Pictures TV is an entertainment channel broadcasting classic films and archive programmes. The channel is owned and operated by Talking Pictures TV Ltd ( Talking Pictures or the Licensee ). Tell Me Another was a talk show originally broadcast between 976 and 979 in which stars of the 960s and 70s recalled personal anecdotes of their experiences in show business. A complainant alerted Ofcom to the use of the word coon, which they found offensive. The word featured in an anecdote told by the comedian and singer Joan Turner when describing her first professional appearance on stage at the age of 4 in a theatre in east London in 937. She described how the dancing girls in the troupe used to tan their legs: in those days the girls didn t wear tights they used to make their legs up with what they call wet white, but it was actually brown. She told how, because her legs were cold and very pale, she borrowed wet white from a dancer and used it to darken her legs and face. Her booking agent however responded by saying, Take that bloody stuff off. You look like a bloody chocolate coloured coon put that on again, you re not coming on!. We considered the material raised issues warranting investigation under Rules.4 and 2.3 of the Code, which state: Rule.4: Rule 2.3: The most offensive language must not be broadcast before the watershed. In applying generally accepted broadcasters must ensure that material which may cause offence is justified by the context... Such material may include, but is not limited to...discriminatory treatment or language (for example on the grounds of race). We therefore asked Talking Pictures TV for its comments as to how this content complied with these rules. Response In its initial comments the Licensee said that it was extremely saddened by the complaint as we never wish to offend any viewers and apologised for any offence caused. It stated that its viewers are well versed in the channel s schedule of classic archive drama and entertainment programming. The Licensee added that the Electronic Programme Guide ( EPG ) information on this particular series informed viewers of the year it was produced. It considered that viewers would therefore have expected anecdotes to reflect attitudes from that period. 7

8 9 January 207 The Licensee said that the word complained about occurred in an episode originally broadcast in ITV regions at 8:30 in 978 and later. It said while we don t wish to defend the use of the term coon, we recognise that this was part of the lexicon of the era when the series was first broadcast. Talking Pictures did not seek to justify the use of the term on the basis that it was said in a programme broadcast in the late 970s, but given the above factors, it argued that the mature demographic of viewers would have made allowance for and understood the use of the term "coon in context of an anecdote from 937 being relayed in a 970s chat show. Talking Pictures later commented in detail on Ofcom's Preliminary View (that in the circumstances of this case coon was an example of the most offensive language and there were breaches of Rules.4 and 2.3). The Licensee argued in summary that Ofcom was taking a disproportionate view in this case and not judging the offending term in the historic context in which it was originally made in 937 and requested Ofcom to resolve this case. The Licensee pointed out that the word coon was included for the first time only in Ofcom research on offensive language published on 30 September a date after the episode of Tell Me Another was broadcast. Previous Ofcom research, including that of did not assess the word coon. It stated that while the research of 200 assessed racially derogatory terms including chink, nigger, and paki, and the 206 research assessed 20 new words in the category of discriminatory language, including several racially derogatory terms to the black community, only one word, nigger was assessed in 200. The Licensee did not deny that the word coon is offensive, but considered it was unfair to apply the 206 language research findings retrospectively when little published evidence in terms of Ofcom research was available to licensees in August 206. It therefore questioned whether the use of coon in this particular case should be categorised as the most offensive language under Rule.4, or offensive language under Rule.6 of the Code. Talking Pictures pointed to the fact that Ofcom, in analysing in the Preliminary View whether coon was in this case an example of the most offensive language, had taken account of context. Talking Pictures suggested that because Rule.6 specifically refers to context (the rule states that Offensive language must not be broadcast before the watershed unless it is justified by the context ), Ofcom should investigate this case under Rule.6, not Rule.4. In assessing the word coon in the context of this programme, the Licensee argued that Ofcom did not take sufficient account of the perceived intent when the offensive language was used and of the genre of the programme. It pointed out that Ofcom referred to these factors in its 206 offensive language research. Attitudes to potentially offensive language and gestures on TV and radio, September 206. See page 2 of the Quick Reference Guide: data/assets/pdf_file/0023/9625/ofcomqrg-aoc.pdf See also the main report: data/assets/pdf_file/0022/9624/ofcomoffensivelanguage.pdf 2 Audience attitudes towards offensive language on television and radio, August 200. See pages 06 to 09: data/assets/pdf_file/007/27260/offensivelang.pdf 8

9 9 January 207 It said that the genre of the show was comedy entertainment where guests were invited to recount funny anecdotes, and Joan Turner s story was clearly delivered for comic effect. The comment was made in reaction to a young girl s disastrous attempt to use fake tan for her first stage show, and showed ignorance on the part of the booking agent but, when viewed in context, it was not used as a racial slur. Talking Pictures underlined that the term was not directed at anyone or used in an aggressive manner. Talking Pictures said also that the Ofcom 206 research stated that: participants gave specialist channels and programmes unlikely to appeal to children some leeway before the watershed [more than] programmes targeting children or broadcast on mainstream channels. The Licensee said that Talking Pictures TV is a specialist channel targeting fans of classic programming and not aimed at younger audiences or children. It referred to viewing figures indicating that children represented less than % of Talking Picture TV s audience around the time of broadcast, and that this reflected typical low child audiences for the channel. It said that audience analysis also indicated that the core of viewers in the weeks around the broadcast were aged between 60 and 70 years old. Talking Pictures said it takes compliance very seriously and understands that television content is not, and shouldn't be, judged by the same now as it was in the past. It pointed out that many of its titles had warning boards scheduled before the start which warn viewers of violence, offensive and discriminatory language and nudity. It said it had also taken steps in the past to bleep or dip audio when offensive language has been used. Talking Pictures said as a result of this case it had stopped broadcasts of this particular episode of Tell Me Another, and also reviewed the whole series against Ofcom s 206 offensive language research, to ensure it contained no language that raised concerns. It said it had also increased the frequency of warnings before archive movies and TV shows to forewarn viewers of outdated language. Decision Under the Communications Act 2003, Ofcom has a statutory duty to set for broadcast content as appear to it best calculated to secure the objectives, which include ensuring that persons under the age of eighteen are protected from material that is unsuitable for them, and providing adequate protection for members of the public from harmful and/or offensive material. These objectives are reflected in Sections One and Two of the Code. Rule.4 Rule.4 states that the most offensive language must not be broadcast before the watershed. Ofcom s 200 research on offensive language did not specifically assess public attitudes to the word coon. It did however, as the Licensee stated, research other racially discriminatory terms such as "nigger" and "paki", and found participants felt such language was amongst the strongest, most discriminatory words discussed. 3 Ofcom s September 206 research, however, did research the term "coon", and 3 Audience attitudes towards offensive language on television and radio, August 200. See pages 06 to 09: data/assets/pdf_file/007/27260/offensivelang.pdf 9

10 9 January 207 concluded that participants regarded it as an example of the strongest language, highly unacceptable without strong contextualisation. Seen as derogatory to black people. 4 In light of the 200 Ofcom research and evidence of the evolution of generally accepted regarding discriminatory language in the UK, Ofcom was of the view that broadcasters should have been aware before September 206 that the word coon was racist and capable of being highly offensive. Given the variety and development of language, for Ofcom to regulate generally accepted it is not necessary for specific potentially offensive language to have featured in Ofcom research for us to decide that a particular term is either offensive language under Rule.6, or the most offensive language under Rule.4. To determine whether in this case the use of the word coon was an example of the most offensive language, Ofcom did not (as suggested by the Licensee) apply the findings of the September 206 offensive language research on the word coon. We took account of: the overall findings of both the 200 and 206 research about racist and discriminatory language (see above); the factors viewers consider when evaluating the potential offensiveness of such language; and, the overall context in which it was broadcast. Ofcom noted the Licensee s comments that the word was included in an archive programme dating from 978 and that viewers may have taken account of this. They may also have had regard to the fact Joan Turner was relating an anecdote which took place at the time of her childhood in 937. As Ofcom research has shown, however, UK audiences today regard racist language of this nature as highly unacceptable, and therefore expect strong contextualisation if it is to comply with the Code. In our view it was not the interviewee s intention to be discriminatory towards an ethnic minority or to cause offence. However, we considered that the use of the phrase bloody chocolate coloured coon clearly conveyed a negative reaction by the booking agent to Ms Turner's skin colour. Even though the phrase was not directed at anyone from an ethnic minority or used in an aggressive manner, it also would have been likely to have been seen by viewers as conveying a discriminatory and racist attitude on the part of the booking agent. These factors, in our view, would have been likely to increase the potential level of offence and on balance made the use of these words inconsistent with viewers expectations for this programme on this channel at this time, and particularly for any who may have come across this material unawares. We acknowledged that the language was broadcast in the context of a comedy entertainment programme made in the 970s which contained what was intended to be a comic anecdote about comments made in 937. However, this offensive language (as acknowledged by the Licensee) was broadcast to viewers with no warning beforehand alerting them to potentially offensive language, and without any editorial voice, commentary or other context to mitigate sufficiently the potential offence. We did not consider the fact that the programme had been made many 4 Attitudes to potentially offensive language and gestures on TV and radio, September 206. See page 2 of the Quick Reference Guide: data/assets/pdf_file/0023/9625/ofcomqrg-aoc.pdf See also the main report: data/assets/pdf_file/0022/9624/ofcomoffensivelanguage.pdf 0

11 9 January 207 years previously or that the anecdote referred to an earlier era, when attitudes were different, provided sufficient context in this case. In particular, we took into account that this programme was broadcast before the watershed with a potential for children to be in the viewing audience, who would not necessarily have been aware of historical differences in attitudes to offensive language. Given all these factors, in this case we considered the word coon was an example of the most offensive language broadcast before the watershed in breach of Rule.4. Rule 2.3 Rule 2.3 requires broadcasters to ensure that the broadcast of potentially offensive material must be justified by the context. Context includes for example: the editorial content of the programme; the service on which it is broadcast; the time of broadcast; and, the likely size and composition of the potential audience and the likely expectation of the audience. For the reasons set out above under Rule.4, the use of the phrase bloody chocolate coloured coon was clearly capable of causing offence. Ofcom acknowledges that there are some circumstances when the inclusion of racially offensive language may be justified by the context of the broadcast. On this occasion, we have acknowledged that viewers, particularly those familiar with the service, would have had some knowledge of the archive nature of this programme, and, through the EPG, of its original date. However, we also took account of the circumstances outlined above under Rule.4. In particular, we had regard to Ofcom s research which showed clearly that the use of a racist word like coon requires strong justification, and that the phrase bloody chocolate coloured coon clearly conveyed a racist attitude on the part of the booking agent. These factors were likely to have increased the potential degree of offence and on balance made the use of these words on this channel in this programme broadcast at this time inconsistent with viewer expectations, particularly for any who may have come across this material unawares. Also, this offensive language was broadcast to viewers with no warning beforehand, and without any editorial voice, commentary or other context to mitigate sufficiently the potential offence. Given all these factors, in our view the use of the phrase bloody chocolate coloured coon was not justified by the context and also breached Rule 2.3. We took into account the various points put forward by Talking Pictures in mitigation, including that: it had stopped broadcasting this particular episode; it had checked all other episodes of the Tell Me Another series for offensive language; and, would broadcast warnings about outdated potentially offensive language more frequently before its archive programming. We did not consider however that these factors were sufficient to merit resolving this matter. Breaches of Rules.4 and 2.3

12 9 January 207 In Breach Trigger Happy TV London Live, 3 September 206, 06:00 to 08:00 Introduction London Live is a local television channel for the Greater London area. The licence for the service is held by ESTV Limited ( ESTV or the Licensee ). Trigger Happy TV is a hidden camera prank show first broadcast on Channel 4 between 2000 and On Saturday 3 September 206, London Live broadcast four episodes of the series consecutively between 06:00 and 08:00. Ofcom received a complaint from a viewer that these programmes contained material that was unsuitable for children. The programmes included three sequences that featured two people dressed in rabbit costumes simulating sex. Each sequence took place in a different public location, with members of the public looking on. They were broadcast at 06:2, 07:40 and 07:52 and were each between ten and 5 seconds in duration. There were also two sequences in which people dressed in dog costumes appeared to commit violent acts. The first (broadcast at 06:24) was filmed in a pool hall and showed the attacker smashing a chair over the head of his victim. He then struck his victim four times with a pool cue, also on his head. The victim fell to the floor during the attack, as if he had been knocked unconscious. The attacker then walked away. The sequence was shown in slow motion and had a duration of approximately 40 seconds. The second violent scene (broadcast at 06:54) featured the same characters and took place in a narrow street. This time, the attacker hit his victim over the head with a truncheon, seemingly knocking him unconscious. The attacker then struck his prostrate victim two more times on the upper half of his body before running away. This 45-second sequence, also shown in slow-motion, concluded with a bystander walking over to the victim to check on his condition. We considered that this material raised issues warranting investigation under the following rule of the Code: Rule.3: Children must be protected by appropriate scheduling from material that is unsuitable for them. We therefore sought comments from the Licensee as to how the material complied with this rule. Response The Licensee expressed regret that a viewer has been offended by the time slot in which the Programme was broadcast and it agreed that the content in question is unsuitable for broadcast at the time of day in which it aired. The Licensee said that, following an internal investigation, it had discovered that when the channel launched in 204, it had outsourced "compliance screening, 2

13 9 January 207 editing and certification for several programmes including Trigger Happy TV. The Licensee told Ofcom that although the compliance viewer had noted the schedulesensitive scenes [in Trigger Happy TV], they unfortunately neglected to remove said scenes from the pre-watershed versions of these programmes. ESTV acknowledge[d] this oversight and apologise[d] for this error. The Licensee said that in response to Ofcom's investigation it had removed the series from its pre-watershed schedule until all episodes had been reviewed by its inhouse compliance team. ESTV also advised Ofcom that it no longer outsources any compliance screening and all acquired content is now reviewed by its internal compliance team prior to broadcast. Decision Under the Communications Act 2003, Ofcom has a statutory duty to set for broadcast content as appear to it to be best calculated to secure the objectives, including that persons under the age of eighteen are protected. This objective is reflected in Section One of the Code. Rule.3 states that children must be protected by appropriate scheduling from material that is unsuitable for them. Appropriate scheduling is judged by a number of factors including: the nature of the content; the time of broadcast; and, likely audience expectations. We first assessed whether the programmes included material unsuitable for children. As noted under Introduction, the episodes contained three sequences featuring people dressed in rabbit costumes simulating sex in various public locations, with members of the public looking on. While the scenes were brief (between ten and 5 seconds in duration), each unambiguously showed simulated sex. We noted that the tone of the simulated sex scenes (and the programmes overall) was comedic and the use of animal costumes resulted in a surreal juxtaposition between the appearance of the characters and the sexual acts being depicted, and the reactions of members of the public. However, given that the characters were clearly simulating sex, we did not consider that the humorous and surreal tone materially lessened the scenes' unsuitability for children. With respect to the two sequences of violence, we considered that adult viewers would have understood the violence was simulated. However, in our view both scenes depicted a somewhat brutal and realistic violent act that appeared to result in the victim being left unconscious (and also causing concern to a bystander in the second case). Therefore, we considered that both were capable of causing distress to some (especially younger) children. For these reasons, we considered that these programmes did contain material unsuitable for children. We went on to assess whether the content was appropriately scheduled. London Live is a local television service that is not aimed at children and Trigger Happy TV was not a series. that would have particular appeal to child viewers. However, these programmes were broadcast between 06:00 and 08:00 on a Saturday morning a time when the 3

14 9 January 207 channel was likely to attract a broad audience, which could have included children, some of whom could have been unsupervised. As noted above, the overall tone of the programmes was light-hearted and comedic, and the characters were all wearing animal costumes. However, three sequences clearly featured these characters simulating sex, while the two sequences of violence were relatively brutal in tone. Overall in our view these sequences were not consistent with likely audience expectations of material broadcast on a local television service early on a Saturday morning. We also took into account that, when first broadcast in the UK, this series was scheduled to be shown after the 2:00 watershed. For all these reasons we considered that the programmes were not appropriately scheduled. We recognised that the Licensee acknowledged that this material was unsuitable for broadcast the time of day in which it aired and apologised for the compliance error that resulted in this incident. However, our Preliminary View was that the broadcast of this material on a Saturday morning breached Rule.3. Breach of Rule.3 4

15 9 January 207 In Breach Kajal Lyca Dil Se 035, 28 July 206, 9:00 Introduction Lyca Dil Se 035 is a commercial radio station providing an interactive speech-based service for the over 35s in Greater London s various Asian communities. The licence for Lyca Dil Se 035 is held by Lyca Media II Limited ( Lyca Media or the Licensee ). A complainant alerted Ofcom to a competition run in the evening show, Kajal. Shortly after 2:00, the presenter invited listeners to call a standard rate landline number for a chance to win tickets to attend a Giggle and Give charity event in Watford, which featured various comedians, including Paul Chowdhry. The presenter asked listeners to provide the answer to the following question: What s Paul Chowdhry s real name? After playing a music track, she said: Now, I m going to change the competition a little bit. I thought that the question I asked was too easy and I think I m going to make it a little bit harder tonight, so what I ve decided to do is, I ve decided to play a song. She then said that she was going to play a remix version of a Bollywood track, after which she asked listeners to answer the following question: What film is this Bollywood track from? Ofcom considered the broadcast competition warranted investigation under Rule 2.3 of the Code, which states: Broadcast competitions must be conducted fairly. We therefore sought Lyca Media s view on how the broadcast competition complied with this rule. Response Lyca Media said it did not consider the competition had been conducted unfairly. It said that the presenter had stacked calls ready to go to air and added that, before any callers were put to air the presenter was informed by management that the question [she had broadcast] was flawed and she should re-run the competition. Lyca Media said that no callers were taken to air and the competition was not formally entered by any individual, adding that it regret[ted] having changed the question but this was explained to listeners. The Licensee said that this incident [had] highlighted the need to examine [its] procedures, adding that it was now undertaking a full review of competition practice and consequent training. 5

16 9 January 207 In response to Ofcom s Preliminary View, the Licensee accepted that after the competition question was asked, and listeners were invited to answer it, the question should not have subsequently been changed. It said that the studio phone-in number was on a non-premium landline and that its presenters and producers were reminded of the importance of better diligence and approval process. Decision Under the Communications Act 2003, Ofcom has a statutory duty to set for broadcast content as appear to it best calculated to secure certain objectives, one of which is that generally accepted are applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material. This is reflected in, among other things, Rule 2.3, which requires that broadcast competitions are conducted fairly. In telling the presenter she should re-run the competition, Lyca Media appeared to consider that one competition would end and a subsequent competition begin, when the question provided to listeners was replaced. Although there may be circumstances when a broadcaster can legitimately abort a phone-in competition when it has received no entries, for example Ofcom does not consider the change of question in this instance was a valid mechanism by which to close the competition and start a new one. The competition commenced when the presenter first posed the original question for listeners to answer (i.e: What s Paul Chowdhry s real name? ) and asked them to call the station for a chance to win tickets to attend a Giggle and Give charity event. In Ofcom s view, the competition did not then end until the prize was won. After the presenter first solicited interaction from listeners, potential entrants responded by calling the station and being held electronically for a chance to participate on air. As the question was subsequently changed, these listeners were disadvantaged, as they then had no chance of entering or winning the competition on the basis upon which they had responded to the presenter s invitation to participate. Our Decision was therefore that the broadcast competition was conducted unfairly, in breach of Rule 2.3 of the Code. Breach of Rule 2.3 6

17 9 January 207 In Breach Father Spitzer s Universe EWTN, August 206, 06:00 At Home with Jim and Joy EWTN, August 206, 9:00 EWTN Bookmark EWTN, August 206, 22:30 Introduction EWTN is a religious channel broadcasting from a Catholic perspective in English and other European languages. The Licensee of EWTN is Eternal World Television Network Inc. ( EWTNI or the Licensee ). During routine monitoring, Ofcom noted the following programmes: Father Spitzer s Universe During this one-hour programme the presenter discusses with Father Spitzer a wide range of subjects, such as faith, suffering and the existence of God. At various points in the episode broadcast at 06:00 on August 206, the presenter referred to specific religious publications, informing viewers how to obtain them. These commercial references included: Don t forget, so much of the information featured on our programme is not only available through EWTN s website, but also the Magis Center website Magis Center one word dot com, where all Father Spitzer s materials and information can be found. And as we talk to Father Spitzer momentarily, I want to remind everybody of the book that has been very popular this summer: Mother Angelica s Answers, Not Promises. This is a new edition all new soft cover edition with a forward by our own Chaplain, Father Joseph Mary Wolf MFVA a wonderful priest here at EWTN Straightforward Solutions to Life s Puzzling Problems. So, Mother had her own take on some puzzling problems in Answers Not Promises, ewtnrc.com. Thinking of problems, with some answers we join Father Spitzer at our West Coast studios in Orange County, California. At relevant points during the above, the following corresponding visual material was also shown: The Magis Center magiscenter.com and Mather Angelica s Answers, Not Promises item #80046 ewtnrc.com , with a photograph of the book s cover. This is also the part of the show where I get to hawk the host s book, and it s God So Loved the World clues to our transcended destiny from the Revelation of Jesus. This is Father Robert Spitzer s latest book. We ll have the honour of being with him at the end of the month. Then we ll be doing a whole show on this particular work, Go So Loved the World. So he s got some other wonderful books about finding true happiness check them out on ewtnrc.com. During the above, the following visual material was shown, with a photograph of the book s cover: 7

18 9 January 207 God So Loved The World item #40363 ewtnrc.com The following publications by Father Spitzer were similarly referenced in the programme: Finding True Happiness ; The Soul s Upward Yearning ; New Proofs for the Existence of God ; Healing the Culture ; Ten Universal Principles: A Brief Philosophy of the Life Issue ; Five Pillars of the Spiritual Life: A Practical Guide to Prayer for Active People ; and The Spirit of Leadership. At Home with Jim and Joy In this one-hour programme, the presenters discussed religious matters with various studio guests. The principal guest in the episode broadcast at 9:00 on August 206 was the opera singer, Bárbara Padilla, who discussed her faith and how it helped with her fight against cancer. The programme featured recordings of her performing. At various points during the programme her web address, BarbaraPadilla.com, appeared a number of times near the bottom of the screen. On three occasions it was shown for well over two minutes. Towards the end of the programme one of the presenters held to camera a copy of the singer s CD, Bárbara Padilla, saying: but if you would like more of Bárbara Padilla, you can get this fabulous CD. There s more of her. And you can just go to BarbaraPadilla.com and get this beautiful, beautiful CD and have more of that heavenly voice and that heavenly music at your own home, in your car. It would be wonderful. EWTN Bookmark This half-hour broadcast is a discussion programme about theological books. In the episode broadcast at 22:30 on August 206, the programme was broadcast from the Catholic Marketing Network s International Trade Show in Somerset, New Jersey. It comprised two interviews. The first was an interview with the religious counsellor and author, Dr Gregory Popcak, in which his books, Broken Gods: Hope, Healing and the Seven Longings of the Human Heart and When Divorce is Not an Option were discussed. The book covers were shown briefly at the beginning of the interview and each was shown occasionally throughout. At the end of the interview the covers were shown again, with a banner stating, The second interview was with Dr Frances Renda, a psychoanalyst and editor of the book, A Call to a Deeper Love. The feature followed a similar presentational format to the above, again ending with an image of the book cover, with a banner stating, 8

19 9 January 207 EWTNI confirmed that none of the material described above was broadcast in return for the making of any payment, or the giving of other valuable consideration, to EWTNI or any person connected with it. We therefore considered the material raised issues warranting investigation under the following Code rules: Rule 9.4 Rule 9.5 Products, services and trade marks must not be promoted in programming. No undue prominence may be given in programming to a product, service or trade mark. Undue prominence may result from: the presence of, or reference to, a product, service or trade mark in programming where there is no editorial justification; or the manner in which a product, service or trade mark appears or is referred to in programming. We sought EWTNI s comments on how the material complied with these rules. Response The Licensee said that EWTNI is the parent company of EWTN Religious Catalogue (the website of which is ewtnrc.com) and that both organisations are non-profit corporations. Father Spitzer s Universe EWTNI said it had reviewed the broadcast and concluded that it may have breached Rules 9.4 and/or 9.5 of the Broadcasting Code, adding that any such breach was entirely unintentional and the result of a misunderstanding of the relevant Rules. The Licensee asked Ofcom to consider in mitigation that the references to Father Spitzer's publications and to the Magis Center, a United States based tax-exempt non-profit charity organization associated with Father Spitzer, are akin to the "Guests plugs referred to in paragraph.30 of the Guidance Notes to Section Nine of the Broadcasting Code, in that these references were directly linked to the guest s profession. EWTNI also noted that, in a 54 minute broadcast, two segments that refer to Father Spitzer's publication, God So Loved the World, and Mother Angelica's publication, Mother Angelica's Answers, Not Promises, each last[ed] for fewer than 30 seconds and that the final segment, in which Father Spitzer's publications are listed on screen and are mentioned by the interviewer, last[ed] for fewer than 20 seconds. The Licensee said it had obtained guidance from external legal counsel to ensure future compliance with the Code, adding that the advice it receives will allow it to review and improve existing compliance procedures and to improve compliance training for EWTN employees. At Home with Jim and Joy data/assets/pdf_file/004/336/section9_may6.pdf 9

20 9 January 207 The Licensee said that the references in the programme to Bárbara Padilla s CD and website were made in the context of a celebrity guest appearance on a chat show, noting again paragraph.30 of Ofcom s published guidance to Section Nine of the Code. EWTNI said it therefore considered its reference to the opera singer s CD was justified editorially, as it was directly related to her profession. The Licensee also said it considered the CD was not given undue prominence in the broadcast, as the visual reference to [it lasted] for less than 20 seconds of the 53-minute broadcast. Further, EWTNI said that it considered Barbara Padilla s website was not given undue prominence, as it was limited to an occasional appearance in a banner at the bottom of the screen that variously display[ed] information regarding Ms. Padilla's profession and the songs being performed on the show. EWTN Bookmark EWTNI said it considered references to the books, Broken Gods, When Divorce is Not an Option and A Call to a Deeper Love were made in the context of a book review and interview programme in which the research and writings of guests [were] discussed. The Licensee therefore considered the references to the products are also editorially justified, being necessary to facilitate a discussion of the ideas and not unduly prominent, adding that visual references to the books under discussion [were] brief, lasting less than 0 seconds, and used sparingly to indicate the particular book being referred to. EWTNI said Ofcom s guidance advises that favourable or superlative language and prices and availability should not be discussed, noting that, in this instance, the tone of the interview avoid[ed] inappropriately favourable language and [was] a bona fide discussion of the guest's ideas. The Licensee added that the prices of the books [were] not discussed and, although the website URL ' [was] shown onscreen briefly, the availability of any products on this website [was] not discussed by the interviewer or guests. In response to Ofcom s Preliminary View, the Licensee accepted the conclusions reached in the Preliminary View. EWTNI said that it always sought to be compliant in its operations and the breaches of the Code were not intentional. It added that, as previously stated, they had sought advice from external legal counsel to ensure that, going forward, EWTNI had a clearer understanding of the Code and it operated in a manner that was fully compliant with the Code. Decision Under the Communications Act 2003 ( the Act ), Ofcom has a statutory duty to set for broadcast content as appear to it best calculated to secure a number of objectives, one of which is that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with. These obligations include ensuring compliance with the Audiovisual Media Services ( AVMS ) Directive. The AVMS Directive contains a number of provisions designed to help maintain a distinction between advertising and editorial content. The requirements of the Act and the AVMS Directive are reflected in Section Nine of the Code. The rules in this section serve to protect viewers from both excessive commercial references in programming and from surreptitious advertising by: limiting the extent to which references to products, services and trade marks can feature in programming; and 20

21 9 January 207 helping to ensure that broadcasters do not exceed the limits placed on the amount of advertising they are permitted to transmit. Importantly, Section Nine does not prohibit all references to products and services in programmes. However, Rule 9.4 requires that products, services and trade marks must not be promoted in programming and Rule 9.5 requires that no undue prominence may be given in programming to a product, service or trade mark, noting that undue prominence may result from a reference to a product, service or trade mark, where there is no editorial justification, or from the manner in which a product, service or trade mark is referred to. Father Spitzer s Universe EWTNI suggested that references in the programme to publications and the Magis Center could have been akin to "Guests' 'plugs'". However, Ofcom s published guidance with reference to such plugs states that it is common for celebrity guests on chat shows and magazine-style programmes to refer to their latest venture In most cases such references will be justified editorially. In all circumstances broadcasters should ensure that any references to products, services or trade marks are appropriately limited so as not to become unduly prominent. In this case, viewers were informed where they could purchase each featured book by visiting, for example, magiscenter.com or ewtnrc.com. Ofcom considered that these references in the programme to points of sale were not editorially justified, as they served the purpose of promoting the sale of the books, as did the references to the books themselves in these instances. Further we considered that, in the absence of sufficient editorial justification for the inclusion of these references, they were unduly prominent. Our Decision was therefore that such references were in breach of Rules 9.4 and 9.5 of the Code and we welcomed the action taken by EWTNI to avoid recurrence. At Home with Jim and Joy EWTNI said that the references in the programme to Bárbara Padilla s CD and website were made in the context of a celebrity guest appearance on a chat show. Ofcom accepted that both the CD and the website were directly related to Bárbara Padilla s profession as an opera singer. Nevertheless, references to any CD or website in a programme must be editorially justified, and must not be given undue prominence. As noted above, references to a celebrity guest s latest venture can be editorially justified. However, Ofcom s published guidance makes clear that, where a reference to a product or service features in a programme for purely editorial purposes, the extent to which a reference will be considered promotional will be judged by the context in which it appears. In general, products or services should not be referred to using favourable or superlative language and prices and availability should not be discussed. 2 In this instance, throughout the interview, the studio guest was occasionally identified in a graphic by her name and profession. Further, the presenter said: 2 Paragraph.30, at: data/assets/pdf_file/004/336/section9_may6.pdf 2

22 9 January 207 but if you would like more of Bárbara Padilla, you can get this fabulous CD. There s more of her. And you can just go to BarbaraPadilla.com and get this beautiful, beautiful CD and have more of that heavenly voice and that heavenly music at your own home, in your car. It would be wonderful. In addition, a graphic was shown including the singer s website address, a number of times during the interview, sometimes for more than two minutes in duration. This website promoted heavily the opera singer s CD and provided the opportunity to purchase it directly. We did not consider there was editorial justification for the references to the singer s website, and we found that these, and the favourable language used by the presenter to describe the singer s music, served to promote the sale of her products. Further we considered that, in the absence of sufficient editorial justification for the inclusion of these references, they were unduly prominent. Our Decision was therefore that the above references to the singer s website, BarbaraPadilla.com, and the CD, Bárbara Padilla, were in breach of Rules 9.4 and 9.5 of the Code. EWTN Bookmark EWTNI said that references in the programme to the featured books, Broken Gods, When Divorce is Not an Option and A Call to a Deeper Love were made in the context of a book review and interview programme in which the research and writings of guests are discussed. We accepted that passing references to the names of featured books would have clearly been editorially justified in the context of a programme about theological books. However, we considered that there was insufficient editorial justification for showing the covers of the publications themselves on several occasions, after the presenter had initially introduced them, and in our view this gave undue prominence to the books. Further, the final image of the book covers of each guest also included the website of EWTNI s retail arm, EWTN Religious Catalogue i.e. ewtnrc.com which in our view served the purpose of promoting the sale of the book. Our Decision was therefore that this material was in breach of Rules 9.4 and 9.5 of the Code. Breaches of Rules 9.4 and

23 9 January 207 Investigations Not in Breach Here are alphabetical lists of investigations that Ofcom has completed between 2 December 206 and 2 January 207 and decided that the broadcaster or service provider did not breach Ofcom s codes, rules, licence conditions or other regulatory requirements. Investigations conducted under the Procedures for investigating breaches of content for television and radio Programme Broadcaster Transmission Categories date Meet the Babes Babenation 28/0/206 Participation TV Harm The Walking Fox 24/0/206 Scheduling Dead This Morning ITV 28/0/206 Product placement Johnny Radio X 6/09/206 Competitions Vaughan The Town That Banned Sony Movie Channel 04//206 Disability discrimination Christmas News Times Now 02/0/206 Due accuracy For more information about how Ofcom conducts investigations about content on television and radio programmes, go to: data/assets/pdf_file/0020/5509/breaches-content.pdf 23